Fathym Enterprise Agreement
Thank you for choosing Fathym!
These Fathym, Inc. (“Fathym”) terms and conditions for enterprise clients (“General Terms”) govern and control each order for a Product or Service referencing these General Terms placed with Fathym. The entity or individual listed as the client on any Order Form ( “Client”) agrees to be bound by these General Terms with respect to each Product or Service listed on that Order Form (defined below) or otherwise provided by Fathym.
These General Terms, together with all Order Forms by a Client accepted by Fathym, form a single binding legal agreement between Fathym and Client (for purposes of that Client, this “Agreement”). This Agreement represents the complete understanding and agreement between Fathym and Client regarding the Products and Services listed on those Order Form(s) and supersedes all prior and contemporaneous agreements and proposals, whether written or oral, with respect to such subject matter.
IF YOU DO NOT AGREE TO THESE GENERAL TERMS, OR DO NOT MEET ANY OF THE QUALIFICATIONS INCLUDED IN THESE GENERAL TERMS, FATHYM IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF ANY PRODUCTS OR SERVICES AND YOU MUST NOT ACCESS OR USE ANY PRODUCTS OR SERVICES.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT.
THIS AGREEMENT CONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. PLEASE READ THEM CAREFULLY.
All capitalized terms used herein will have the definitions given to those terms in Section 19 (Definitions) or the definitions given to them in this Agreement. All other terms will have their plain English (U.S.) meanings.
2.1 Ordering From Fathym. Client may place an order under this Agreement by submitting an order in a form and format acceptable to Fathym (an “Order Form”). No Order Form will become a part of this Agreement, and Fathym will have no obligation or responsibility with respect to any Order Form, until accepted by Fathym. Acceptance of any Order Form is in Fathym’s sole discretion. Once accepted by Fathym, each Order Form will constitute a part of this Agreement, and any terms contained in any other document that Client may provide to Fathym, including any other terms provided in connection with any Order Form, are void, of no force or effect, and will not become part of this Agreement or otherwise bind Fathym. If there is a conflict between these General Terms and any Order Form, these General Terms will control unless the Order Form expressly indicates that it is intended to supersede the provisions of these General Terms.
2.2 Ordering From Fathym Providers. This Agreement applies only to Products or Services that you purchase or for which you acquire the right to access or use directly from Fathym under this Agreement. Fathym may also offer you the ability to purchase or obtain the right to access or use products, services or other offerings (“Provider Offerings”) directly from Fathym’s third party providers (“Provider”). If you order Provider Offerings from a Provider, those Provider Offerings are outside the scope of this Agreement and are subject to the agreement that you enter into with the Provider and not to this Agreement. Any such agreement is solely between you and the Provider and will not be binding on Fathym. Fathym disclaims all responsibility and liability with respect to any Provider Offering or under any agreement you may enter into with respect to a Provider Offering.
This Agreement will begin on the earliest of the following (the “Effective Date”): (1) the effective date of Client’s initial Order Form with Fathym under this Agreement; (2) the date Client otherwise agrees to these General Terms; or (3) the date Client is first provided with access to or use of a Product or Service. This Agreement will continue until terminated as set forth herein. The term of each Order Form will continue until the expiration date stated in that Order Form, and if no expiration is set forth in the Order Form, then for a period of two (2) years, unless earlier terminated in accordance herewith. Unless otherwise stated in the Order Form, this Agreement shall auto-renew for successive twelve (12) month periods.
4. Fees and Payment
4.1 Fees. Client will pay Fathym all amounts set forth on each Order Form (“Fees”).
4.2 Operational Limits. If Client’s access to or use of any Product or Service exceeds any applicable Operational Limit for such Product or Service, Client will promptly notify Fathym of the applicable overage (including both the amount and duration of such overage). Client agrees to pay any applicable additional fees and charges based on such overage, all of which will become part of the Fees under this Agreement.
4.3 Taxes. Except for taxes based on Fathym’s income, Client will be responsible for payment of all taxes and other government fees, charges or surcharges, including all sales, use, gross receipts, excise, access, bypass, franchise or other local, state and federal taxes, fees, charges or surcharges (“Taxes”), however designated, imposed on or based upon the provision, sale, or use of any Products or Services provided hereunder. If Client is required to withhold or deduct any Taxes from the payment of any Fees or Expenses, Client agrees to increase the amount payable to Fathym by the amount of such Taxes so that Fathym receives the full amount of all Fees and Expenses.
4.4 Expenses. Fees do not include expenses incurred by Fathym in connection with its performance of the Services or any other obligations under this Agreement (“Expenses”). Client agrees to reimburse Fathym for all reasonable out-of-pocket Expenses incurred by Fathym under this Agreement, including shipping costs or service provider fees (such as payment processor or vendor management).
4.5 Payment. Unless otherwise set forth in an applicable Order Form, Client agrees to pay all Fees (a) for Professional Services and Training Services at the time of the order, and (b) for Subscriptions no later than thirty (30) days after the date of Fathym’s invoice for such Fees. The Fees for any other Products or Services will be payable as specified on the Order Form for those Products or Services. All Fees and Expenses are payable in the currency specified on each Order Form, and if no currency is is specified, then in U.S. Dollars. Client will pay all Fees and Expenses without withholding or deduction. All Fees and Expenses are non-refundable once paid (including upon any termination or suspension). Any credit extended to Client is subject to Fathym’s approval, and Fathym may change credit terms. Client covenants and agrees that all billing and payment information provided by Client will be truthful and accurate. If Client specifies a credit or debit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, Client authorizes Fathym to charge the credit or debit card, or debit the bank account, provided to Fathym for all Fees and Expenses. Client covenants and agrees to maintain the right to use such credit card, debit card or bank account for payment of all Fees and to provide Fathym with any updates thereto as needed to enable payment of all Fees or Expenses hereunder. If any such credit card, debit card or bank account charges are rejected, dishonored or reversed, Client agrees to promptly pay the applicable charges upon demand by Fathym. All past due amounts will bear an additional charge of the lesser of one and one-half percent (1.5%) per month or the maximum amount permitted under applicable law.
5. Reporting and Audit
During the term of this Agreement, Client shall: (1) monitor the performance and usage of all Products and Services and promptly notify Fathym if Client’s use of any Software exceeds any applicable Operational Limits; (2) keep current, complete and accurate records concerning the usage of all Products and Services; (3) provide copies of such records to Fathym upon five (5) business days’ written notice, for the purpose of verifying compliance with the terms of this Agreement and any applicable Operational Limits; and (4) allow Fathym access (whether physical or remote) to the devices on which any Products or Services are installed as reasonably requested by Fathym to verify that Client’s use is in compliance with this Agreement and all applicable Operational Limits. Client acknowledges that the Products or Services may provide for remote monitoring of the operation thereof to ensure that usage of the Products or Services are in compliance with this Agreement and all applicable Operational Limits. Client consents to all such monitoring and to the use by Fathym of all data and information collected through such monitoring. Client agrees not to alter or modify any data or information collected or produced through such monitoring (or any files containing any such data or information). During the term of this Agreement and for a period of twelve (12) months thereafter, Fathym or its designee may inspect your facilities and records to verify your compliance with this Agreement. You agree to (a) respond promptly to requests for information, documents and/or records; (b) grant appropriate access for on-site visits in order to verify your compliance; and (c) reasonably cooperate in connection with any such verification. Fathym will provide at least ten (10) days prior written notice for any on-site visits and will conduct on-site visits during regular business hours in a manner that reasonably minimizes interference with your business. If Fathym notifies you of any noncompliance or underpayment, then you will resolve the non-compliance and/or underpayment within fifteen (15) days from the date of notice. If the underpayment exceeds five percent (5%), then you will also reimburse Fathym for the cost of the inspection.
6.1 Termination for Cause. Either party may terminate this Agreement or any Order Form hereunder by notice to the other party if (a) the other party materially breaches this Agreement or such Order Form and does not cure the breach within thirty (30) days after written notice from the other party (except in the case of a breach of Section 10 (Confidentiality) in which case no cure period will apply); or (b) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors which is not dismissed within a period of sixty (60) days.
6.2 Termination for Convenience. Either party may terminate this Agreement upon five (5) business days’ notice to the other party at any time there are no outstanding Order Forms hereunder.
6.3 Effect of Termination. Termination of this Agreement or any Order Form for any reason will not relieve the parties of any rights or obligations accruing prior to such termination. Termination or suspension of an individual Order Form will not terminate or suspend any other Order Form or the remainder of this Agreement, unless specified in the notice of termination or suspension. If this Agreement is terminated, all outstanding Order Forms will also terminate. Upon any termination of this Agreement or any Order Form (a) Fathym may immediately cease providing access to all Products and Services subject to this Agreement or such Order Form; (b) all rights and licenses to all Products and Services granted to Client under this Agreement or such Order Form will cease; (c) Client will promptly discontinue all use of the Products and Services subject to this Agreement or such Order Form, erase all copies of any Software included in such Products and Services from the devices on which it has been installed, and return or, at the option of Fathym, destroy all copies of that Software in Client’s possession or control; and (d) all Fees and any other charges owed by Client under this Agreement or such Order Form prior to such termination will become due and payable and Client will promptly pay all such Fees and other charges up to the effective date of termination.
6.4 Survival. The relevant provisions of the following Sections will survive termination of this Agreement for any reason: 1, 4, 5, 6, 8, 10, 13, 14, 15, 16, 17, 18, 19 and 20.
7. Represenations and Warranties
7.1 Mutual Warranties. Each party represents and warrants to the other party that (a) it has the authority to enter into this Agreement; (b) this Agreement is a legal and valid obligation binding upon such party and enforceable in accordance with its terms; (c) this Agreement will not conflict with, result in a breach of or constitute a default under any other agreement to which such party is a party or by which such party is bound; and (d) such party will comply, and in the case of Client will ensure that all employees and contractors of Client comply, with all laws, rules and regulations applicable to this Agreement and all Products and Services.
7.2 Performance Warranty. Fathym represents and warrants to Client that (a) the Services will be performed in a professional and workmanlike manner by reasonably qualified personnel according to industry standards; and (b) Fathym will use commercially reasonable measures designed to ensure that any Software does not, at the time of delivery to Client, include malicious mechanisms or code for the purpose of damaging or corrupting the Software (commonly known as malware, viruses or worms).
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7 (REPRESENTATIONS AND WARRANTIES): (1) ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS; (2) YOUR USE OF ALL PRODUCTS AND SERVICES IS AT YOUR OWN RISK; AND (3) FATHYM MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THIS AGREEMENT OR THE FATHYM PRODUCTS OR SERVICES AND FATHYM DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES IMPLIED BY THE COURSE OF DEALING OR USAGE OF TRADE. FATHYM AND ITS SUPPLIERS DO NOT REPRESENT OR WARRANT THAT THE PRODUCTS OR SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE, ACCURATE OR COMPLETE OR COMPLY WITH REGULATORY REQUIREMENTS; THAT FATHYM WILL CORRECT ANY ERRORS; OR THAT THE INFORMATION PROVIDED THROUGH THE PRODUCTS OR SERVICES IS ACCURATE, RELIABLE OR CORRECT. IN THE EVENT OF
A BREACH OF THE WARRANTIES SET FORTH HEREIN, YOUR EXCLUSIVE REMEDY, AND FATHYM’S ENTIRE LIABILITY, WILL BE THE RE-PERFORMANCE OR RE-DELIVERY OF THE DEFICIENT PRODUCT OR SERVICE, OR IF FATHYM CANNOT SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER, TERMINATION OF THE RELEVANT PRODUCT OR SERVICE, IN WHICH CASE YOU MAY RECEIVE A PRO RATA REFUND OF THE FEES PAID FOR THE DEFICIENT PRODUCT OR SERVICE AS OF THE EFFECTIVE DATE OF TERMINATION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, PROVIDED BY FATHYM OR ANYWHERE ELSE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
9.1 Digital Partner of Record. If you are using Azure cloud management subscription services by Microsoft, you must designate Fathym as your Digital Partner of Record (“DPOR”) granting Fathym permission with the provider to help you design, build, deploy or manage the subscription service itself or a solution built on the subscription service. Fathym must be added as your DPOR each time you purchase a Service, regardless of whether the Service is new or existing. Only you can designate a DPOR for your subscriptions; this is not a task Fathym can do for you. If you are not currently using Microsoft Azure cloud management subscription services, you may be required to create an account and subscribe to Azure in order to use certain of the Services, in which case, the terms for Third Party Services herein shall apply. Failure to create an account and subscribe to Azure as required will be a material breach of this Agreement.
9.2 Domain Names. If you are registering a domain name or using or transferring a previously registered domain name, you acknowledge and agree that use of the domain name is also subject to the policies of the Internet Corporation for Assigned Names and Numbers (ICANN), including their Registration Rights and Responsibilities.
9.3 Fathym Online Properties. You may be required to create an Account to access certain Online Properties or other Services. You agree to provide accurate information when creating an Account. You may not access or create multiple Accounts in a manner that is intended to avoid, or has the effect of avoiding, payment of Fees or circumventing thresholds or limitations associated with your Account or otherwise in a manner intended to violate this Agreement. You are solely responsible for all activities in connection with your Account. You will notify Fathym promptly if you become aware of any unauthorized use of your Account. Your use of and access to the Online Properties and other Services may also be subject to the specifications, if any, applicable to such Online Properties or other Services. Upon any termination of this Agreement or any Order Form, it is your responsibility to properly cancel your Account.
9.4 Evaluations. Fathym may offer Evaluation Subscriptions. Unless otherwise stated in the Order Form, Evaluation Subscriptions are not for use for commercial or production purposes and will be provided with limited or no support, at Fathym’s sole discretion. THE REPRESENTATIONS AND WARRANTIES OF SECTION 7.2 (PERFORMANCE WARRANTY) DO NOT APPLY TO EVALUATION SUBSCRIPTIONS.
10.1 Nondisclosure. Recipient (a) may not disclose Confidential Information of Discloser to any third party unless Discloser approves the disclosure in writing or the disclosure is otherwise permitted under this Section 10 (Confidentiality); (b) will use the same degree of care to protect Confidential Information of Discloser as it uses to protect its own confidential information of a similar nature, but in no event less than reasonable care; and (c) may disclose Confidential Information of Discloser only to its employees, Affiliates, agents and contractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written obligation (or other professional obligation) to keep such information confidential using standards of confidentiality no less restrictive than those required by this Section 10 (Confidentiality). Notwithstanding the foregoing, a Recipient may disclose Confidential Information if it is required to do so by applicable law, regulation or court order but, where legally permissible, will provide advance notice to the Discloser to enable the Discloser to seek a protective order or other similar protection if feasible. In the event of a conflict between the terms of this Agreement and a previously executed non-disclosure agreement between Fathym and Client, if any, the more restrictive terms shall govern.
10.2 Exceptions. Information is not Confidential Information, if (a) the information is or becomes generally publicly available other than as a result of the Recipient’s breach of this Agreement or any other obligation to Discloser; (b) the Recipient, at the time of disclosure, knows or possesses the information without obligation of confidentiality or thereafter obtains the information from a third party not under an obligation of confidentiality; or (c) the Recipient independently develops the information without use of or reference to the Discloser’s Confidential Information.
10.3 Return of Confidential Information. Upon written request of the Discloser, and in any case upon any termination of this Agreement, the Recipient will promptly return or destroy all Confidential Information of Discloser, except for Confidential Information stored in routine back-up media not accessible during the ordinary course of business.
10.4 Competitive Offerings. Nothing in this Agreement will limit Fathym from providing software, materials or services for itself or other clients, irrespective of the possible similarity of such software, materials or services to those that might be delivered to you. The terms of Section 10 (Confidentiality) will not prohibit or restrict either party’s right to develop, use or market products or services similar to or competitive with the other party; provided, however, that neither party is relieved of its obligations under this Agreement.
10.5 Enforcement. Recipient hereby agrees that breach of this Section 10 (Confidentiality) will cause Discloser irreparable damage for which recovery of damages would be inadequate, and that Discloser shall therefore be entitled to obtain timely injunctive relief, as well as such further relief as may be granted by a court of competent jurisdiction.
11. Information and Communication
11.1 Client Information. If you provide Client Information in connection with your use of or access to any Products or Services, you agree that, subject to Section 10 (Confidentiality), Fathym, its suppliers, and their respective Affiliates may use such Client Information in connection with providing the Products and Services under this Agreement. You agree that your provision (and Fathym’s use) of Client Information under this Agreement does not require any additional consents or licenses, will be in compliance with applicable law, and will not violate any intellectual property, proprietary, privacy or other right of any third party. As between Fathym and you, you retain all other rights in and to Client Information.
11.2 Feedback. You may be asked to voluntarily provide Fathym with Feedback in connection with Products or Services. You have no obligation to do so. If you choose to do so, Fathym may use Feedback for any purpose, including incorporating the Feedback into, or using the Feedback to develop and improve the Products or Services and any other Fathym offerings without attribution or compensation. You grant Fathym a perpetual and irrevocable license to use all Feedback for any purpose. You agree to provide
Feedback to Fathym only in compliance with applicable laws, and you represent that you have the authority to provide the Feedback and that Feedback will not include proprietary information of a third party.
12. Licenses, Reservation of Rights
12.1 Proprietary Products and Services. With regard to Products and Services not specifically indicated by Fathym to be subject to the terms of an open source or other third party license (“Proprietary Offerings”), subject to Client’s compliance with the terms and conditions of this Agreement and the applicable Order Form for each Proprietary Offering, during the term of the Order Form applicable to each Proprietary Offering, Fathym grants to Client a non-exclusive, non-transferable, non-sublicensable, limited licence to access and use the Proprietary Offering specified in each Order Form solely for Client’s own internal business purposes (other than as a stand-alone commercial offering) in accordance with the use stated in the Order Form applicable to such Proprietary Offering.
12.2 Licence Restrictions. Access to Proprietary Offerings is on a usage basis and is licensed, not sold. The restrictions in this Agreement represent conditions of your licence. You specifically agree not to (a) sub-licence, rent, sell, lease, distribute or otherwise transfer your right to access any Proprietary Offering or otherwise use or allow others to use any Proprietary Offering for the benefit of any third party (other than your Affiliates and/or in the provision of services to your clients); (b) attempt to reverse engineer, decompile, disassemble, or derive the source code or underlying ideas or algorithms of any Proprietary Offering or any portion thereof; (c) modify, port, translate, localise or create derivative works of any Proprietary Offering; (d) use any Proprietary Offering in violation of any law, statute, ordinance or regulation applicable to you; (e) provide access to any Proprietary Offering except as provided in this Agreement; (f) collect any information from or through any Proprietary Offering using any automated means, including without limitation any script, spider, “screen scraping” or “database scraping” application; (g) gain or attempt to gain non-permitted access by any means to any Proprietary Offering or any Fathym computer system, network or database; and/or (h) file copyright or patent applications that include any Proprietary Offering or any portion thereof.
12.3 Third Party Offerings. The Products and Services may contain or include products and services owned or provided by third-party licensors and providers of Fathym, including Products and Services made available under open source licenses (“Third-Party Offerings”). All Products and Services are Proprietary Offerings, unless specifically indicated by Fathym to be subject to the terms of an open source or other third party license (which may include payment of additional fees) (a “Third-Party Agreement”). For any Third-Party Offering specifically indicated by Fathym to be subject to the terms of a Third-Party Agreement, the terms of the applicable Third-Party Agreement will apply to the Third-Party Offering independent of the terms of this Agreement. All other Third-Party Offerings provided to Client by Fathym may be used only under the terms of this Agreement. Nothing in this Agreement limits Client’s rights under, or grants rights to Client that supersede, the terms of any applicable Third-Party Agreement and any applicable Third-Party Agreement will control in the event of a conflict between the terms of this Agreement and that Third-Party Agreement. Unless otherwise stated in this Agreement, Fathym has no control over, is not responsible for and does not provide support for, any Third Party Offering provided under a Third Party Agreement.
12.4 Rights Restricted. Fathym grants to you only those rights expressly granted in this Agreement with respect to the Products and Services and reserves all other rights in and to the Products and Services, including all intellectual property and other proprietary rights. Fathym and its licensors will retain all right, title and interest in and to the Products and Services, and any additions, improvements, updates, extensions or modifications thereto, which may be developed or otherwise acquired by either party (whether or not
contemplated by or made in conjunction with this Agreement), as well as all intellectual property and proprietary rights therein and relating thereto throughout the world, including, without limitation, all copyrights, trademarks, trade secrets, patents (and patent applications), moral rights and other rights protecting data, information or intangible property throughout the world. Except for the limited licenses expressly granted hereunder, Client will have no right, title or interest (whether by implication, estoppel or otherwise) in or to the Products or Services or any such intellectual property rights therein or thereto. Fathym and its licensors retain all rights, title and interest in and to any and all trademarks and logos of Fathym and its licensors displayed on or in the Products or Services and no right or license is granted to Client to use them separate from the right to use the Products and Services under this Agreement. Client agrees never to challenge or contest Fathym’s and its licensor’s ownership of any Product or Service.
13. Data Collection
14. Limitation of Liability
14.1 DISCLAIMER OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR ITS AFFILIATES, WILL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY DAMAGES FOR LOST OR DAMAGED DATA, LOST PROFITS OR REVENUES, LOST SAVINGS OR BUSINESS OR SERVICE INTERRUPTION, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
14.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FATHYM’S AND ITS AFFILIATES’ TOTAL AND AGGREGATE LIABILITY RELATING TO OR ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED THE FEES RECEIVED BY FATHYM WITH RESPECT TO THE PARTICULAR PRODUCT OR SERVICE GIVING RISE TO SUCH LIABILITY UNDER THE ORDER APPLICABLE TO SUCH PRODUCT OR SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH LIABILITY; PROVIDED THAT IN NO EVENT WILL FATHYM’S AND ITS AFFILIATES’ TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ALL PRODUCTS AND SERVICES EXCEED THE FEES RECEIVED BY FATHYM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY UNDER THIS AGREEMENT. THIS LIMITATION APPLIES REGARDLESS OF THE NATURE OF THE CLAIM, WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHER LEGAL THEORY. THESE LIMITATIONS DO NOT LIMIT CLAIMS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF FATHYM OR ITS AFFILIATES.
15. Governing Law and Arbitration
15.1 Choice of Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Colorado (U.S.A.), without regard to or application of conflicts of law rules or principles.
15.2 Binding Arbitration. Any controversy, dispute or claim relating to this Agreement shall be exclusively resolved by binding arbitration conducted at a site specified by Fathym in Denver, Colorado (U.S.A.) Any such arbitration will be conducted in the English language, in accordance with the rules of the
American Arbitration Association then in effect (“Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within thirty (30) days after either party delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement. If you file for arbitration, you shall be solely responsible for any fees in connection with such filing.
15.3 Venue. Subject to the provisions for arbitration herein, the Federal and State Courts having jurisdiction over matters arising in Denver, Colorado (U.S.A.) will have sole and exclusive jurisdiction over any disputes arising under or relating to this Agreement and the parties hereby irrevocably submit to the personal jurisdiction of such courts. No claim or action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the party first became aware, or reasonably should have been aware, of the basis for the claim. TO THE FULLEST EXTENT PERMITTED, EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. To the extent permissible, the United Nations Convention on Contracts for the International Sale of Goods will not apply, even if adopted as part of the laws of the State of Colorado.
16. Force Majeure
Fathym shall be excused from performance of its obligations under this Agreement, including any applicable Order Form, if such a failure to perform results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of Fathym. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
All notices under this Agreement shall be in writing, in English. When you send a notice to Fathym, such notice shall be deemed properly given when addressed to Fathym’s address as stated on its website and (1) delivered by personal delivery, (2) transmitted by electronic mail with receipt confirmed, (3) delivered by overnight courier service with signature required, or (4) mailed by first class U.S. mail with postage paid, return receipt requested. Fathym may send notices to you through the Products and Services or to any email address or physical address used by your Account.
You acknowledge that the Products and Services may be subject to the export administration regulations of the United States and other countries. You agree to comply with all applicable export and import laws or regulations, including any local laws in your jurisdiction, concerning your right to import, export or use of all Products and Services and agree that Fathym is not responsible for your compliance. Without limiting the foregoing, you agree that you will not export, disclose, re-export or transfer any Products or Services,
directly or indirectly, to (a) any U.S. embargoed destination; (b) any party who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, or sounding rockets, unmanned air vehicle systems, or any other restricted end-use; or (c) anyone on (or controlled by a person or entity on) a U.S. government restricted persons list, including those who have been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. You will not provide to Fathym any data or engage Fathym in any activity, in each case, that could constitute the development of a “defense article” or provision of a “defense service” to you, as these terms are defined in Section 120 of the International Traffic in Arms Regulations (ITAR). In addition, you will not, and will not allow third parties under your control, (i) to provide Fathym with Client Information that requires an export license under applicable export control laws or (ii) to process or store any Client Information that is subject to the ITAR. If you breach (or Fathym believes you have breached) this paragraph or the export provisions of an end user license agreement for any Software or Fathym is prohibited by law or otherwise restricted from providing Products to you, Fathym may terminate this Agreement and/or the applicable Order Form without liability to you. You acknowledge that to provide the Services, it may be necessary for Client Information to be transferred between Fathym, its Affiliates, Fathym Providers, vendors and/or subcontractors, which may be located worldwide.
19. Additional Provisions
19.1 Interpretation. This Agreement shall be interpreted in English (U.S.). Client may translate this Agreement into other languages. In the event of a conflict between any translated version of this Agreement and the English version, the English version will control. The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.”
19.2 United States Government End Users. The Software and its documentation are “Commercial items”, “Commercial computer software” and “Computer software documentation” as defined by the Federal Acquisition Regulations (“FAR”) and Defense Federal Acquisition Regulations Supplement (“DFARS”). Pursuant to FAR 12.211, FAR 12.212, DFARS, 227.7202-1 through 227.7202-4 and their successors, the U.S. Government acquires the Software and its documentation subject to the terms of this Agreement.
19.3 Assignment. Neither this Agreement nor any rights or obligations of either party hereunder may be assigned or delegated by either party in whole or in part (by operation of law or otherwise) without the prior written approval of the other party, except that either party may, upon written notice to the other party, assign this Agreement in its entirety to a successor or acquirer of such party pursuant to a merger or sale of all or substantially all of such party’s assets. Any other assignment or transfer of this Agreement will be deemed void and ineffective without the prior written consent of the other party. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.
19.4 Waiver. A waiver by a party under this Agreement is only valid if in writing and signed by an authorized representative of such party. A delay or failure of a party to exercise any rights under this Agreement will not constitute or be deemed a waiver or forfeiture of such rights.
19.5 Independent Contractors. The parties are independent contractors and nothing in this Agreement creates an employment, partnership or agency relationship between the parties or any Affiliate. Each party is solely responsible for supervision, control and payment of its personnel. Fathym may subcontract Services to third parties or Affiliates as long as (a) subcontractors agree to protect Confidential Information and (b) Fathym remains responsible to you for performance of its obligations.
19.6 Outside Parties. This Agreement is binding on the parties to this Agreement and, other than as expressly provided in this Agreement, nothing in this Agreement grants any other person or entity any right, benefit or remedy.
19.7 Counterparts. This Agreement, including any Order Form, may be executed in counterparts, each of which will be deemed an original and all of which will constitute one and the same document. The parties may exchange signature pages by email or electronic signature process and such signatures will be effective to bind the parties to this Agreement.
19.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will remain in effect to the greatest extent permitted by law.
20.1 “Account” means an account that enables you to access and use Online Properties and may include a user name and password or other means of access designated by Fathym.
20.2 “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a party, where “control” is the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
20.3 “Client Information” means any data, information, software or other materials that you provide to Fathym under this Agreement.
20.4 “Confidential Information” means information disclosed by the Discloser to Recipient during the term of this Agreement that (a) is marked confidential; (b) if disclosed orally, is clearly described as confidential at the time of disclosure and is subsequently set forth in writing, marked confidential and sent to the Recipient within thirty (30) days following the oral disclosure; or (c) is otherwise of a nature that the Recipient knows is confidential to the Discloser or should reasonably be expected to know is confidential.
20.5 “Discloser” means the party disclosing or making available Confidential Information under this Agreement.
20.6 “Evaluation Subscriptions” means Products or Services offered without charge solely for evaluation on a limited subscription basis and not for production purposes, including offerings described as “evaluation”, “preview” or “beta”.
20.7 “Online Properties” means Fathym websites, portals and hosted Services included in, or provided in connection with, Products.
20.8 “Products” means Software, Services, Subscriptions and other Fathym branded offerings made available by Fathym.